Bad logic: Wherever you stand on executions, Supreme Court’s ruling was strange

You might think juveniles shouldn’t be executed for capital crimes, and that is a reasonable position, perhaps even the correct one. What is absolutely wrong, however, is the U.S. Supreme Court’s logic for outlawing the executions.

The court’s vote in the case was 5-4, with Justice Anthony Kennedy writing the majority opinion. In it, he said that the five prevailing found “confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

Kennedy also wrote that the Frightful Five had detected a “national consensus” — not among the courts, not in Congress, not among the state legislatures, just a “national consensus” — that executing young murderers is wrong.

Well, there may be such a consensus. And it may be wrong. But that is beside the point. The Supreme Court is not supposed to make rulings based on a perceived “national consensus,” but upon the law.

If courts are going to rule on the basis of public opinion, we can get more scientific in our methods and get them all right. We can simply commission a survey of the population and rule on each case according to the polls.

But that is not the way it is supposed to work.

Even more egregious is Kennedy’s statement that the justices based their ruling in part on what other countries do.

That was not a smart thing to write. Even if the justices had world opinion in the backs of their minds, they shouldn’t have said so. It doesn’t matter what other countries do. The court is supposed to base its decisions on law in this country.

Every day seems to bring new urgency for getting a Senate vote on President Bush’s judicial nominations.

Published in Editorials on March 15, 2005 11:15 AM